Town and country planning – Planning permission – Heritage impact – Agent of change principle – Defendant local authority granting planning permission for redevelopment – Claimant applying for judicial review – Whether defendant failing to consider heritage impacts of development – Whether defendant properly addressing crowd control issues – Whether defendant failing to lawfully apply agent of change principle – Application dismissed
The interested party applied to the defendant local authority for planning permission for a major redevelopment of land west of High Road, Tottenham, London N17.
An officer’s report recommended the scheme and the defendant granted permission subject to an agreement under section 106 of the Town and Country Planning Act 1990 and planning conditions.
The land was to the north and south of White Hart Lane, and adjacent to the Tottenham Hotspur Stadium. The proposed development was within one of the most deprived areas of England.
In granting the planning permission, the defendant observed that the development would “represent a significant step forward in progressing the Council’s and the community’s ambition to ensure that north Tottenham is a fairer, healthier place where all our residents can thrive”.
The claimant owned and operated the Tottenham Hotspur football club at the stadium. It already had planning permission to develop parts of the site known as the Goods Yard and the Depot.
The claimant applied for judicial review of the decision to grant planning permission to the interested party contending that the defendant:
(i) failed to lawfully assess the totality of the heritage impacts of the development;
(ii) unlawfully relied upon an agreement under section 106 of the Town and Country Planning Act 1990 and planning conditions to determine that crowd control matters for the stadium would be appropriately addressed; and
(iii) failed to lawfully apply the “agent of change” principle.
Held: The application was dismissed.
(1) The legal test in any challenge to a decision of a local planning authority based on alleged defects in an officer’s report was whether the report had materially misled members of the planning committee on a matter bearing upon their decision, ie, but for the flawed advice, the planning committee’s decision would or might have been different: R (Siraj) v Kirklees Metropolitan Borough Council [2010] PLSCS 74; [2011] JPL 571, R (Nicholson) v Allderdale District Council [2015] EWHC 2510 (Admin), Mansell v Tonbridge & Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174; [2018] JPL 176 and St Modwen Developments Ltd v Secretary of State [2017] EWCA Civ 1643; [2017] PLSCS 196; [2018] PTSR 746 considered.
The officer’s report advised on the legal approach to heritage issues including the need for the decision maker to attach “considerable importance and weight” to any heritage harm in the planning balance. It also contained an analysis of the impact of the scheme on the significance of heritage assets.
That needed to be read in conjunction with the addendum report, made following representations from the claimant, which ensured that the impact of the claimant’s consented schemes on the Goods Yard and the Depot sites was properly considered.
On any fair reading of both reports, it was clear that the defendant was assessing the entire proposal. The conclusion on the impact on individual listed buildings reflected the impact of the whole scheme (and was consistent with the substantive analysis when the extant planning permissions were granted).
Overall, heritage impacts were lawfully identified and judged to be outweighed by the substantial public benefits which the scheme would deliver.
(2) The defendant had lawfully decided that the combined effect of the section 106 agreement and condition 64 (a detailed crowd control condition) ensured that safeguards existed which would enable arrangements for crowd safety to be in place, and capable of being implemented, at each stage of the construction.
The combination provided a workable framework which did not have an unreasonable impact on the claimant. Both parties had negotiating power and it was appropriate and justifiable for a planning authority to proceed on the basis that socially and commercially responsible actors such as the claimant and the interested party would behave reasonably in seeking to ensure access arrangements and crowd safety.
Read fairly and as a whole the officer’s report and the addendum report made clear to committee members that securing at least equivalent queuing conditions as presently existed would require rights of access to be granted to the claimant, on reasonable terms.
The advice to planning committee members enabled them to reach a planning judgment whether the proposed arrangements were reasonably capable of providing crowd control for the claimant’s operations. The defendant acted lawfully in devising a mechanism which encouraged co-operation in relation to access and crowd control.
(3) The “agent of change principle”, as expressed in the paragraph 187 of the NPPF provided: “Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as … sports clubs).
Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed”.
The judgment of the defendant was that the planning permission secured an appropriate mechanism to ensure that the stadium’s operations would be sustainable when all parties worked together and acted reasonably whilst consulting key stakeholders. That was a lawful approach to adopt and members had sufficient information upon which to make that judgment, and to delegate the final decision to officers.
(4) The defendant was lawfully satisfied that the planning permission created a framework which would ensure that the access to the stadium (which was a key planning consideration) would be satisfactorily achieved without unreasonable impact on the claimant; and that the combination of the section 106 agreement and the conditions would adequately safeguard its interests and that the grant of consent was therefore compatible with the agent of change principle.
The principle did not demand that there be no impact upon existing businesses caused by a new development but required a judgment whether they would be subjected to “unreasonable restrictions”. There was no proper basis to impugn, in public law terms, the defendant’s judgment in that regard.
Christopher Katkowski KC and Freddie Humphreys (instructed by Richard Max & Co LLP) appeared for the claimant; Daniel Kolinsky KC and Andrew Parkinson (instructed by London Borough of Haringey) appeared for the defendant; David Elvin KC and Andrew Byass (instructed by Ashurst LLP) appeared for the interested party
Eileen O’Grady, barrister